Berkman University (the University), a public university, is suing Instant Term Papers, Inc. (ITP) for violation of the Educational Honesty Act, which prohibits the distribution of a term paper to a student who uses the paper for credit at a school in this state. ITP has asked this court to dismiss the complaint on the grounds that the Act violates the First Amendment of the United States Constitution.

Maria Morgan is suing Berkman University for suspending her for one year for an act of plagiarism. She claims that the school violated her fourth amendment right to privacy by "spying" on her Internet use.

The suits have been consolidated for this appeal.

On September 27, 1998, Maria Morgan, a first-year student at the University, downloaded a free paper on 1970’s pop culture off the ITP site on the World Wide Web, made a few minor stylistic changes, and turned it in for credit in her American Culture class. She did not cite ITP as a source for "her" paper, and did not tell her professor that she had downloaded the paper off the Internet. Ms. Morgan’s perfidy would likely have gone unnoticed had the University not performed a search of student computers to check if students were accessing Web sites that offer term papers, including the ITP site. This search indicated that Ms. Morgan had accessed the ITP site. At school disciplinary hearings, Ms. Morgan identified the ITP Web site as the source of her paper. The disciplinary board suspended her from school for one year.

The Educational Honesty Act makes it a crime to "distribute… a term paper, knowing or having reason to know that such term paper will be submitted or used by some other person for academic credit and represented as the original work of such person at an educational institution without proper attribution as to source," unless the distribution falls within one of the statute’s safe harbors. Distribution is permitted if the distributor observes a 96 hour waiting period, cooperates with a state-approved "search engine" designed to help teachers fight plagiarism, or distributes the paper in an unalterable PDF format with the original author or source identified. It is undisputed that ITP did not wait 96 hours before sending the paper to Ms. Morgan. Further, the University claims that use of the one state-approved search engine did not turn up the particular paper submitted by Ms. Morgan. Apparently ITP requires users to sign up for a confidential password. This password system blocks the state-approved search engine from checking papers on the ITP site. Nor can ITP claim that the paper was distributed only in unalterable PDF format. Ms. Morgan was able to make changes to the paper and her version did not include any attribution to ITP or the original author.

The statute presumes knowledge to distribute in violation of the law if the distributor engages in specified activity such as custom formatting, blocking further sales, or categorization of the papers by formatting or page length. ITP fits the requirements for presumed knowledge. ITP distributes two classes of papers: some for sale and some for free. All papers are searchable by format, so students can request papers of a particular length, with specific citation formats (endnotes or footnotes). The company recovers value from the free papers by selling advertising space on its web site. Additionally, ITP offers certain higher quality papers for sale. The ITP site includes disclaimers that explain that its papers are to be used for research purposes only. The fact that papers are searchable by format, however, contradicts this claim. If this law stands, it is apparent that ITP has violated the statute. It fits the presumption of intent and does not escape by satisfying any of the safe harbor requirements.

ITP argues, however, that this Act violates the First Amendment’s guarantee of free speech. The University argues that these pre-packaged term papers have no legitimate purpose, and are entirely designed to deceive and defraud, and therefore do not receive constitutional protection.

This Court agrees with ITP. The exchange of scholarly material is at the heart of First Amendment protection. Were the ITP essay published in book or pamphlet form, there would be no question about its dissemination being entitled to the fullest protection possible under the Constitution. The University’s contention that the ITP paper has no scholarly merit is nothing but academic snobbery, and irrelevant to our First Amendment jurisprudence.

We now turn to Ms. Morgan’s Fourth Amendment claim. Ms. Morgan’s use of an ITP paper was discovered by the University after they searched her computer. The University periodically sweeps student hard drives to search for records of downloads from suspicious sites as well as to retrieve copies of any file that has been downloaded from such a site. The search system is designed so that it only returns positive results. If a student has downloaded material from a targeted site, that material will be returned to the University. No other information on the hard drive is returned to the University. The University software can search for downloads from any site, but school policy limits searches to downloads from known internet term paper mills. The University uses the AcademicHonesty.edu database to determine targeted sites.

While the student’s hard drive is being searched by the University program, the student may experience a momentary slow down in processing speed. Although this effect is noticeable, it is minimal and can not be differentiated by the student from the variations in connection speed that normally occur along the network. Thus inconvenience is minimized.

Students are informed of the University search policy via a memo included with their software package. University courses require web based participation and this participation can only be achieved using the software package distributed by the University. Students can not access course web pages using independent internet service providers or software. Once the student's computer has a connection with the University server (for example when the student accesses a University web page), the program installed on the student's computer allows the server access to the hard drive. The University server is designed so that it checks students' hard drives on a random basis over a two week period. Once the system has checked a particular hard drive in a given two week period, the system is designed to not check that computer again until the following period begins.

Although Ms. Morgan’s hard drive has been searched by the University, her Fourth Amendment rights have not been violated. She was aware that the University conducted such searches. The University’s search does not return any information about the contents of the student’s hard drive other than downloads from term paper sites. Additionally, the search does not interfere with Ms. Morgan’s right to use her computer. The effect of the search, although noticeable, is minimal. The Fourth Amendment was designed to protect our citizens from intrusive searches that would invade their privacy. Although there was a search for fourth amendment purposes, it was reasonable and therefore Ms. Morgan’s constitutional rights have not been violated. There is nothing in our constitution that prevents schools from maintaining their academic integrity.